Even less noted than the Court’s apparent retreat from shadow docket overreach was a more consequential decision: a June 8 case, Health & Hospital Corporation of Marion, Indiana v. Talevski. In this ruling, a 7-2 majority rejected an attempt to disembowel the federal government’s capacity to tie regulatory strings to funds granted to states and localities. Conservatives have long recognized that, as libertarian Texas Law professor Lynn A. Baker spotlighted as early as 1995, “the greatest threat to state autonomy is, and has long been, Congress’ spending power.” (As distinguished from the far more touted authority to “regulate” interstate commerce.) From time to time, right-wing academics, advocates, Republican (and, sometimes, Democratic) state attorneys general, and, on occasion, as many as four Supreme Court Justices have come up with legal theories to act on Baker’s insight, and cripple this “conditional spending power.”
But none of these legal hand grenades ever garnered five votes. In Talevski, Indiana’s attorney general decided that the new Trump super-majority might have removed that wall. He claimed that Medicaid, and other conditional spending clause programs, could not be enforced in court by individual victims of state governmental violations of grant requirements. Such individual lawsuits, under Section 1983 of the Reconstruction era Ku Klux Klan Act of 1871, have always been the only effective means of securing state compliance with requirements in laws as important as Medicaid (covering over one quarter of the national population), Medicare, civil rights protections such as the 1964 Civil Rights Act and the gender equality in athletics strictures of what is known as Title IX, key provisions of the Clean Air and Clean Water Acts, and many other landmark liberal laws.
But, to Indiana’s challenge, Chief Justice Roberts assigned liberal rookie Justice Ketanji Brown Jackson to write (her first) opinion for the Court, which crisply repudiated Indiana’s claim that spending clause conditions were not within the meaning of federal “laws” protected by Section 1983. ”Hewing to text and history, … our precedent and constitutional role,” Jackson wrote, “we reaffirm, that ‘laws’ in Section 1983 means what it says.”